Dated

————

[insert product name] Software licence agreement 

 

 

 

 

 

between

 

on device solutions ltd

 

and

 

[customer]

 

 

 

THIS  AGREEMENT is dated [DATE]

Parties

(1)               ON DEVICE SOLUTIONS LTD incorporated and registered in England and Wales with company number 07524473 whose registered office is at iCentrum, Innovation Birmingham, Holt Street, Birmingham, England, B7 4BP (ODS).

(2)               [FULL COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Customer).

Background

ODS is the owner and licensor of the [product name]SAP add-on and associated mobile applicationsoftware described in Annex Aand is willing to license the Customer to use such software for a specified duration on the terms of this Agreement.

 

Agreed terms

1.                   Interpretation

1.1                The definitions and rules of interpretation in this clause apply in this Agreement.

Acceptance Date: the date on which the Customer is deemed to have accepted the Software under clause 2.

App: the ODS mobile application for use by Authorised Users on a mobile device, which forms part of the Software licensed hereunder.

Authorised Users: those employees, agents and independent contractors of Customer who are authorised by Customer to use the Software.

Effective Date: [the date of this Agreement].

Fee: the fees payable by the Customer to ODS under clause 6.

Integration: means any service, software or materials provided, controlled or owned by or on behalf of a third-party, in respect of which service, software or materials ODS from time to time facilitates an integration or connection with the Software.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Product.

New Product: any product or service comprising all or any part of the Software which from time to time is publicly marketed and offered for purchase by ODS in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product or requiring a separate licence fee.

Open Source Software:free or open-source software, or is otherwise distributed publicly in source code form under terms that permit modification and redistribution of such software, including any software as defined as ‘open source’ by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).

Product Description: the document detailing the specification of the Software which forms Annex A.

Release Notes: the notes made available by ODS in respect of the Software (including any Maintenance Release) specifying the period during which the Support Services will be provided.

Software:  the [product name]SAP add-on and associated mobile applisted in the Product Description and any Maintenance Release which is acquired by the Customer during the subsistence of this Agreement.

Support Services: services provided by ODS to support the Software including any attempts to resolve queries or issues in relation to use of the Software. 

Support Services Policy:ODS’ standard policy from time to time in force for providing Support Services available to Customer on request.

User Subscription: the user subscriptions purchased by Customer which entitle Authorised Users to access and use the Software in accordance with this Agreement.

1.2                Clause and Annex headings shall not affect the interpretation of this Agreement.

1.3                Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.4                In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules or appendices, the provision in the body of this Agreement shall take precedence.

1.5                References in this Agreement to ‘written’ or‘writing’ include email.

2.                   Delivery and acceptance

2.1                ODS shall deliver one copy of the Software to the Customer to an email address specified by the Customer or on a physical medium delivered to the Customer’s address stated above within 7 days of signature of this Agreement. Risk in any tangible media on which the Software is delivered shall pass on delivery.

2.2                After supplying or providing access to the Software, ODS will notify the Customer in writing that it can conduct its acceptance tests.The content of such acceptance tests and the acceptance criteria shall be approved by ODS. The Customer will then have two weeks in which to conduct acceptance tests to verify that the Software operates materially in accordance with the Product Description. At the end of this period, the Customer will be deemed to accept the Software unless ODS receives prior written notice outlining the nature of the perceived defects in the Software.Such notice shall specify the defect and details as to why the Software does not comply with the Product Description.ODS shall use its reasonable endeavours to remedy such Software defects notified in accordance with this clause.

2.3                Notwithstanding 2.2 above, the Customer will be deemed to accept the Software when the Customer first uses the Software to support its then current operations in any capacity.Upon the actual or deemed acceptance of the Software in accordance with this clause 2, ODS shall be entitled to request a written acknowledgement of acceptance from the Customer and the Customer shall immediately provide it.

3.                   Licence

3.1                In consideration of the Fee paid by the Customer to ODS, ODS grants to the Customera personal, non-transferable and non-exclusive licence for the term of this Agreementto use the Software.

3.2                In relation to scope of use:

(a)            for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form byany employee, agent or sub-contractor of the Customer, strictly for the purpose of processing the Customer's data for the normal business purposes of the Customer;

(b)            the Customer may not use the Software other than as specified in clause 3.1 and clause 3.2(a) without the prior written consent of ODS, and the Customer acknowledges that additional fees may be payable on any change of use approved by ODS;

(c)            the Customer may make one backup copy of the Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying; and

(d)            except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that such prohibition is unlawful.

3.3                The Customer shall not:

(a)            sub-license, assign or novate the benefit or burden of this Agreement in whole or in part;

(b)            allow the Software to become the subject of any charge, lien or encumbrance; and 

(c)            deal in any other manner with any or all of its rights and obligations under this Agreement,

without the prior written consent of ODS.

3.4                ODS may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Customer.

3.5                Each party confirms it is acting on its own behalf and not for the benefit of any other person.

3.6                Notwithstanding clause 7, a party assigning any or all of its rights under this Agreement may disclose to a proposed assignee any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 3.6 shall be made until notice of the identity of the proposed assignee has been given to the other party.

3.7                The Customer shall:

(a)            ensure that the number of persons using the Software (including any users of the App) does not exceed the User Subscriptions specified in Annex B;

(b)            keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to ODS on request from time to time;

(c)            notify ODS as soon as it becomes aware of any unauthorised use of the Software by any person;

(d)            pay, for broadening the scope of the licences granted under this Agreement to cover the unauthorised use, an amount equal to the fees which ODS would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 6.3, from such date to the date of payment.

3.8                The Customer shall permit ODS to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that ODS provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

3.9                If Customer wishes to purchase additional User Subscriptions, Customer shall notify ODS in writing. ODS shall evaluate such request for additional User Subscriptions and respond to Customer with approval or rejection of the request.

3.10            If ODS approves Customer's request to purchase additional User Subscriptions, Customer shall, within 30 days of the date of ODS’ invoice, pay to ODS the relevant Fees for such additional User Subscriptions at the rate set out in Annex B. Such Fees shall be pro-rated for the remainder of the term of this Agreement.

4.                   Third party services and software

4.1                The Software is designed to be integrated with SAP as set out in Annex A. ODS is responsible for ensuring the compatibility of the Software with SAP as set out in Annex A, provided that the Customer’s deployment of SAP and the Software complies with technical specifications for any SAP software and services, andany instructions or technical specifications for use of the Software (as provided by ODS to the Customer from time to time).For the avoidance of doubt, the Customer is responsible for licensing and maintaining the SAP software and services required for integration of the Software, and for compliance with any terms applicable to such software or services.

4.2                Subject to the provisions of clause 4.1 regarding SAP, ODS may make Integrations available for the Customer’s use in connection with the Software. The Customer agrees that:

(a)            ODS has no responsibility for the use or consequences of use of any Integrations;

(b)            the Customer’s use of any Integrations shall be governed by the applicable terms between the Customer and the owner or licensor of the relevant Integrations;

(c)            the Customer is solely responsible for any Integrations used in connection with the Software and for compliance with all applicable third-party terms which may govern the use of such Integrations; and

(d)            the continued availability and compatibility with the Software and performance of the Integrations is outside the control of ODS and ODS has no responsibility for any unavailability of or degradation in the Software to the extent resulting from the availability, incompatibility or performance of any of the Integrations.

4.3                The Software may facilitate Customer to utilise Firebase Cloud Messaging (FCM), Windows Push Notification Services (WNS), and Apple Push Notifications (APN) (each being a “Push Notification Service”) to send messages using a mobile device. Without limitation on clause 4.2above, the Customer acknowledges and agrees that: (a) Customer is responsible for use of the Push Notification Service in respect of the App; (b) each Push Notification Service is subject to the terms applicable to it as specified from time to time by Google, Apple, Microsoft or their affiliates, and the Customer agrees to comply with such terms; and (c) Push Notification Services are not provided as part of the Software and thus excluded from all representations, warranties, indemnifications and support obligations under this Agreement.

5.                   Maintenance and support

5.1                ODS will provide the Customer with all Maintenance Releases generally made available to its customers. The Customer shall make available to the Customer the Release Notes in respect of each Maintenance Release.

5.2                ODS shall use all reasonable endeavours to provide Support Servicesin accordance with the Support Services Policy. ODS shall have no obligation to provide such Support Services if the fault is not reported in accordance with the Support Services Policy or where faults arise from:

(a)            misuse, incorrect use of or damage to the Software; or

(b)            failure to maintain the necessary environmental conditions for use of the Software; or

(c)            any modification or enhancement of the Software, which modification or enhancement has not been provided to the Customer by ODS; or

(d)            use of the Software in combination with any equipment or software not provided by ODS, or any fault in any such equipment or software; or 

(e)            any breach of the Customer's obligations under this Agreement.

5.3                The Customer acknowledges that the Support Services shall be provided by ODS for each release of the Software, solely for the duration specified in any Release Notes applicable to the version of the Software delivered to the Customer, or (as applicable) to any subsequent Maintenance Release.

5.4                The Customer undertakes to ensure that no data identifying a living individual is transmitted, displayed or otherwise made available to any ODS personnel providing Support Services. 

6.                   Fees

6.1                The Customer shall pay to ODSthe Feesas set out in Annex B. The Customer shall pay all invoices in respect of the Fees within 30 days of receipt.

6.2                All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

6.3                If the Customer fails to make any payment due to ODS under this Agreement by the due date for payment, then, without limiting ODS’ remedies under clause 12, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6.4                ODS shall be entitled to increase the Fees,and/or the fees payable in respect of the additional User Subscriptions, at the start of each Renewal Period upon 30 days' prior notice to Customer and Annex B shall be deemed to have been amended accordingly.

7.                   Confidentiality and publicity

7.1                Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority), information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

7.2                No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

8.                   Export

8.1                Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval. 

8.2                Each party undertakes:

(a)            contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

(b)            if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

9.                   ODS’ warranties

9.1                ODS warrants that the Software will conform in all material respects to theProduct Description from the Acceptance Date. Ifthe Customer notifies ODSby email in accordance with Annex B, of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Product Description, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by ODS, or it has not been loaded onto ODS-specified or suitably configured equipment, ODS shall, at ODS’ option, do one of the following, which constitutes the Customer’s sole and exclusive remedy in respect of any breach of the warranty set out in this clause 9.1:

(a)            provide the Support Services in accordance with this Agreement; or

(b)            replace the Software; or

(c)            terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,

provided the Customer provides all the information that may be necessary to assist ODS in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable ODS to re-create the defect or fault. 

9.2                ODS does not warrant that the use of the Software will be uninterrupted or error-free.

9.3                The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

9.4                The Customer acknowledges that certain Software may contain or be shipped with Open Source Software. Open Source Software may be identified in the end user documentation or in a list of the Open Source Software provided to Customer upon Customer’s written request.To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.The Customer acknowledges that any Open Source Software included and provided by ODS with the Software is provided "as is" and expressly subject to the disclaimer in clause 9.5.

9.5                All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

10.                Limits of liability

10.1            Except as expressly stated in clause 10.2:

(a)            ODS shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(i)              special damage even if ODS was aware of the circumstances in which such special damage could arise;

(ii)            loss of profits;

(iii)           loss of anticipated savings;

(iv)          loss of business opportunity;

(v)            loss of goodwill;

(vi)          loss or corruption of data,

(b)            the total liability of ODS, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fee paid or payable during 12 months immediately preceding the first event giving rise to liability; and

(c)            the Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) ODS shall have no liability in any circumstances otherwise than in accordance with the express terms of this Agreement.

10.2            The exclusions in clause 9.5 and clause 10.1 shall apply to the fullest extent permissible at law, but ODS does not exclude liability for:

(a)            death or personal injury caused by the negligence of ODS, its officers, employees, contractors or agents;

(b)            fraud or fraudulent misrepresentation;

(c)            any other liability which may not be excluded by law.

10.3            All references to "ODS" in this clause 10 shall, for the purposes of this clause and clause 19 only, be treated as including all employees, affiliate companies, subcontractors and suppliers of ODS, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 19.

11.                Intellectual property rights

11.1            The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to ODSor (in the case of Open Source Software, the relevant third-party owners), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement.

11.2            ODS undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the Intellectual Property Rights (except for any patent registered in respect of any territory outside of the United Kingdom) of a third party (Claim) and shall be responsible for any reasonable liabilities, costs (including legal fees) and expenses incurred by or awarded against the Customer directly in connection of any such Claim. For the avoidance of doubt, clause 11.2 shall not apply where the Claim in question is attributable to (i) any Form Designer; (ii) any Open Source Software; (iii) possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Agreement; (iv) use of the Software in combination with any hardware or software not supplied or specified by ODS if the infringement would have been avoided by the use of the Software not so combined; or (v) use of a non-current release of the Software.

11.3            If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, ODS’ obligations under clause 11.2 are conditional on the Customer:

(a)            Promptlygiving written notice of the Claim to ODS, specifying the nature of the Claim in reasonable detail;

(b)            not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of ODS;

(c)            giving ODS and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable ODS and its professional advisers to examine them and to take copies (at ODS’ expense) for the purpose of assessing the Claim; and

(d)            subject to ODS providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as ODS may reasonably request to avoid, dispute, compromise or defend the Claim.

11.4            If any Claim is made, or in ODS’ reasonable opinion is likely to be made, against the Customer, ODS may at its sole option and expense:

(a)            procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this Agreement;

(b)            modify the Software so that it ceases to be infringing;

(c)            replace the Software with non-infringing software; or

(d)            terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,

provided that if ODS modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 9.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.

11.5            This clause 11 constitutes the Customer's exclusive remedy and ODS’ only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 10.1

12.                Duration and termination

12.1            This Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 12,this Agreement shall continue for a period of [36] monthsfrom the Effective Date (“Initial Term”) and shall automatically extend for identical periods (each a “Renewal Period”) at the end of the Initial Term and at the end of each Renewal Period. Either party may give written notice to the other party not later than 30 days before the end of the Initial Term or the relevant Renewal Period, to terminate this Agreement at the end of the Initial Term or the relevant Renewal Period, as the case may be.

12.2            Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a)            the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b)            the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c)            the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(d)            the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(e)            the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.

12.3            Without prejudice to any other rights or remedies to which ODS may be entitled, ODS may terminate the Agreement without liability to the Customer if: 

(a)            there is a change of control of the Customer such that control of the Customer is acquired by, or the Customer or a company controlling it acquires control of, a competitor of ODS; or

(b)            the Customer develops software that is competitive with the Software.

12.4            Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of thisAgreement which existed at or before the date of termination or expiry.

12.5            On termination for any reason:

(a)            all rights granted to the Customer under this Agreement shall cease;

(b)            the Customer shall cease all activities authorised by this Agreement;

(c)            the Customer shall immediately pay to ODS any sums due to ODS under this Agreement; and

(d)            the Customer shall immediately destroy or return to ODS (at ODS’ option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to ODS that it has done so.

12.6            Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

13.                Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.                Remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15.                Force majeure

ODS shall have no liability to Customer under this Agreement if it is prevented from or hindered or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, any matter affecting or in relation to SAP SE or any SAP software, any act or policy of any App Store, strikes, lock-outs or other industrial disputes (whether involving the workforce of ODS, SAP or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.

16.                Entire agreement

16.1            This Agreement, the schedules and the documents annexed as appendices to this Agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

16.2            Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) (Representation) other than as expressly set out in this Agreement or those documents.

16.3            Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.

16.4            Nothing in this clause shall limit or exclude any liability for fraud.

17.                Variation

Except as set out in this Agreement, no variation of this Agreement shall be effective unless it is in writing and agreed by the parties.

18.                Severance

18.1            If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

18.2            If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

19.                Third-party rights

Except as specified in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

20.                No partnership or agency

20.1            Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

20.2            Each party confirms it is acting on its own behalf and not for the benefit of any other person.

21.                Governing law and jurisdiction

21.1            This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

21.2            The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

This Agreement has been entered into on the date stated at the beginning of it.

 

Signed by Navdeep Singla for and on behalf of On Device Solutions Ltd	………………………………… Director
Signed by [NAME OF DIRECTOR] for and on behalf of [NAME OF CUSTOMER]	………………………………… Director

Annex A.      Product Description

[insert product description]

 

Annex B – Fees, User Subscriptions

[set out number of User Subscriptions]

 

[set out Fees and payment schedule e.g. [£[●] per month per User Subscription, payable [every three months in advance starting on the date of this Agreement] ]

OR 

[US$[●] on the date of this Agreement, and a Support Fee payable annually in advance in respect of each Renewal Period. The Support Fee in respect of the first Renewal Period shall be $[●]. For all subsequent years, the Support Fee will be the then current Support Fee increased by inflation as calculated by reference to the Average Weekly Earnings index as published by the Office for National Statistics in the UK, or any replacement or substitute for it.]